Luxembourg advised of more involvement in Islamic finance

By Mushtak Parker Available at: http://www.arabnews.com/?page=6&section=0&article=128520

THE Luxembourg office of PricewaterhouseCoopers (PWC) in a report on Islamic finance published at the end of October 2009, has urged greater involvement and visibility from the Luxembourg government and regulators if it is serious about establishing the principality as a European Islamic finance hub especially for Islamic funds and sukuk.

Compared to regulators in the UK, Ireland and France, the Luxembourg regulators have never approached their counterparties in target countries such as Saudi Arabia, the UAE, Kuwait, Bahrain and Malaysia to seek cooperation on Islamic finance.

PWC, the international auditors and consultancy, has based its report on the recommendations and conclusions drawn from an Islamic finance meeting. The report suggests that Islamic finance is an important niche business for Luxembourg. Some 16 sukuks are already listed on the Luxembourg Stock Exchange. For instance, the $1.5bn Petronas EMAS sukuk issuance in August 2009 was listed in Luxembourg in preference to the London Stock Exchange.

In addition, there are more than 31 Islamic investment funds, mainly global equity and real estate funds, registered and domiciled in Luxembourg. The PWC report stressed that the future target of Luxembourg Islamic funds should be investors in Europe, although this will require an educational process to attract investors amongst Europe’s Muslim population of around 20-25 million. The report also stressed that Luxembourg should leverage its strong private banking industry, its good reputation and its cost-competitiveness as a financial center. As such, there is a potential for cross selling Shariah-compliant products to these investors.

In a rare foray into Islamic finance, Yves Mersch, governor of the Central Bank of Luxembourg, in a speech at the Islamic Financial Services Board (IFSB) in Kuala Lumpur earlier this year, stressed that “despite the current turbulences, the market practitioners of Islamic finance in Luxembourg remain optimistic that Islamic finance is likely to grow steadily in the next few years based on investors’ appetite for financial products based on sound ethical principles.”

Mersch warned that numerous challenges remain, however, including regulatory changes, legal certainty, illiquidity issues, liquidity management risk concerns, the need for harmonized regulation, regulatory disparity amongst national supervisors and a lack of level playing field. It is crucial to ensure that Shariah principles are able to accommodate the innovative products which would allow the integration of Islamic finance into the international financial system.

Mersch confirmed that market players in Luxembourg want formal recognition of Islamic financial products and accounting standards. “Our authorities have proved pragmatic, innovative and adaptive to the financial landscape. According to discussions currently being held at the national level, this will also be the case with regard to Islamic finance,” he declared.

Although the Luxembourg authorities have set up an Islamic finance Taskforce, bringing in various regulators, professional associations and market players, actual progress in the facilitation of Islamic financial products in Luxembourg remains slow and bureaucratic. It would be difficult to have full fledged Islamic banking operations in Luxembourg due to a legal and regulatory framework. For example, it is not possible for Luxembourg banks to provide bank accounts without any risk cap, which is typical for an Islamic bank. In addition, Islamic banking requires banks to have partnership accounts.

The PWC report also highlighted concerns from market players in Luxembourg about various risks associated with various Islamic financial products and practices, although some of these concerns betray some ignorance about Islamic finance. Islamic funds are almost all done through manual transactions. This leads to higher risk, for example accounting of revenues and purification of interest. Compliance issues such as eligible assets and investment restrictions are not monitored, as these are dealt typically by Shariah boards. There is also a perception of a lack of information sharing in relation to cleansing and eligible charitable organizations. The report calls for rules of charities should be demystified. However, the total amount of money purified is insignificant and money laundering risk is therefore limited as most of the Shariah compliant funds in Luxembourg are equity funds.

These latter points are unimaginable in markets such as Malaysia and even Turkey. Perhaps it reflects more on the inability of the fund managers and their lack of engagement in navigating through these issues. Sharing of information is a requisite in Islamic finance otherwise the transaction could be non-permissible because of Gharar (deception or non-disclosure), which is proscribed by the Shariah. Such concerns are not new and typical of some jurisdictions new to Islamic finance.

Fiduciary risk is not much different than for conventional funds with respect to OTC (over the counter) products. A large portion of sukuk is listed and managers have not yet invested in sukuk privately placed, thus mitigating risk to a certain extend. Assets are generally held by sub-custodians implying settlement and custody risk.

The report also stresses that default risk must also be taken into account since the emergence of the first occurrences of sukuk defaults earlier this year, which include East Cameron Gas Sukuk, the Investment Dar Sukuk, and the SAAD/Al-Gosaibi Sukuk. In terms of valuation risk, the report stressed that there is no clarity on valuation parameter for investments to be obtained by counterparties or the Shariah board. The report also identified a number of compliance risks. Participants, for instance, mentioned that no Shariah compliance checks are made as it is not a market practice and it is the responsibility of the Shariah board.

A service fund administration can send a report to the board of directors but will not check if investments are Shariah-compliant. Shariah compliance is part of the investment policy and should be checked by the manager from an eligibility an d risk spreading point of view. The question remains, however, if asset managers have the knowledge to check such compliance issues. It is, however, difficult to put the compliance checks in a system in comparison with conventional funds as compliance rules might be non-standard (changing) and are somehow based on judgment. This requires more flexibility than for a conventional fund.

Good advice is always certain to be ignored, but that’s no reason not to give it By Agatha Christie

Best Regards
ZULKIFLI HASAN
DURHAM, UK

International Conference on Shari’ah and Common Law, Kuala Lumpur, Malaysia